*1 609 course, Congress granted regarding to the FCC the authori- of action this claim will be petition directly to charges, prac- to the FCC. 47 ty “[a]ll determine whether See U.S.C. 208(a). Then, § tices, classifications, the FCC is statutorily obli- are regulations” and gated id., 201(b). investigate complaint, the § see 47 Here reasonable. U.S.C. and an order within five months. See issue classifying is Access under four- SWBT (West 208(b)(1) § 47 U.S.C.A. Supp.1997). price circuit The issue is wire schedule. The may FCC’s order is then final and be 6,000-foot the limitation is a reason- whether 208(b)(3). § appealed. See 47 U.S.C. If ei- clearly classification. action able This falls ther judi- or chooses to seek Access statutory authority SWBT the FCC’s to de- order, cial review of final the FCC’s it would the of SWBT’s classi- termine reasonableness 402(a), § do so under 47 U.S.C. pro- which id. fication. See vides appeals “shall be brought pro- Furthermore, to determine whether by vided in prescribed and the manner in reasonable, it the classification is will be nec 402(a). chapter 158 of 28.” title See id. essary to become the technical embroiled Thus, aggrieved petition would file party aspects VG service. FCC has far appeals review in á court wherein expertise more than the courts on matters days sixty venue lies within entry after the transmissions, designs, signal as circuit such the FCC’s final order. See 28 U.S.C. attenuation, echo return loss. noise 2342(1) §§ (jurisdiction of court appeals), Thus, upon the need to the draw FCC’s (venue), (sixty-day and 2344 filing peri- experience present expertise and is here. od). The applicable statute of limitations words in a are in a tariff used “[W]bere original the action in the District Court sense, or peculiar technical and where extrin implicated, therefore is not and Access is not necessary sic is to determine their evidence unfairly by disadvantaged the District proper application,” as is the ease Court’s dismissal. here, go appro the issue to the should first III. Pac.,
priate
agency.
administrative
Western
66,
352 U.S.
After the District Court determined primary jurisdiction rested with
FCC, it dismissed the suit. A district court [stay
“has discretion either to the case and] OLSON, Appellant, Pamela or, jurisdiction parties retain if the not would v. unfairly be disadvantaged, dismiss the prejudice.” Cooper, case without Reiter v. DUBUQUE COMMUNITY SCHOOL 258, 268, 1213, 1220, DISTRICT, Appellee. 507 U.S. 113 S.Ct. (1993).
L.Ed.2d No. 97-2477. The District Court did not abuse its Appeals, United States Court of dismissing discretion the suit. Access ar Eighth Circuit. that, gues because a dismissal does not toll Submitted Jan. 1998. limitations, the statute Access could be Decided March 1998. unfairly disadvantaged if it chose to refile Rehearing Suggestion Rehearing court federal after the renders a deci FCC April En Banc Denied against on its claim sion SWBT. Access’s argument is without merit. today we
Because hold that the doctrine of
primary jurisdiction applies, Access’s next *2 IA, Stefani, Rapids, A ar-
Steven Cedar gued, Appellant. for Shubatt, IA, argued Dubuque, Michael J. (Allan Carew, brief), Appellee. on the J. ARNOLD, S. Chief RICHARD Before ARNOLD, Judge, MORRIS SHEPPARD SACHS,1 Judge. District Judge, and Circuit Sachs, souri, sitting by designation. The Honorable Howard F. United Judge Western District of Mis- ARNOLD, placed SHEPPARD Circuit her on anti-depressant MORRIS medication. n that, Judge. Dr. spring Lee felt control, depression again Olson’s under Pamela Olson contends that she whs fired opined and Dr. Lee at that time that she was elementary job guid- from her as an school well, able to clearly, “think make decisions *3 Dubuque'Community ance with the counselor and good has Despite concentration.” the (“Dubuque”) in School violation of improvement health, in her mental the evalu- (ADA), the Americans with Disabilities Act ations of Ms. performance Olson’s for the §§ a see 42 12101-12213. motion U.S.C. On year very 1993-94 negative. school were Du- summary for the judgment, lower court held buque plan a improvement created of for Ms. that to that Ms. Olson had failed she show Olson year, for the 1994-95 school but when meaning was within the disabled the of ADA her work not improve, did she placed was on and a prima therefore could not make out paid leave in the fall 1994. Following of ap- of case discrimination. Ms. Olson facie hearing, arbitration she was terminated from peals; judgment we affirm the of the lower employment her in spring the of 1995. court.2 H. I. make prima To out a case for facie began In job Ms. Olson a new as an ADA, the a.violation of Ms. Olson must show elementary guidance school counselor for that she meaning was disabled within the of Dubuque. degree She holds in a bachelor’s the ADA: Flags See Aucutt v. Over Mid- Six elementary degree education and a master’s Inc., America, (8th 85 F.3d Cir. and, counseling development and human 1996). Disability the under ADA is defined from elementary 1984 until she was an “(A) physical impairment as a or mental that Jessup guidance school with counselor Com- substantially limits major one or more of the Schools, munity a smaller school district. (B) individual; life of [the] activities a record history depression. Ms. has a of (C) Olson On of such impairment; being regarded or occasions, two she sought medical attention having impairment.” such an See 42 gain 12102(2). and was to of able control her condition § U.S.C. To establish that she has prior taking within a few weeks. Just to her 12102(2)(A), § disability a under Ms. Olson position Dubuque, began with she to suffer show, case, must in the circumstances this of depression again. from once felt She with- depression that her significantly restricted drawn unable interact and to with her co- (itself opportunities employment her a workers, and she that believed her state of “major activity”) ability by limiting life her to adversely job performance. mind her affected perform jobs range of a a class broad Shortly began working Dubuque, she after jobs compared to various classes as the Mary she Kay Heilbing, super- informed her average person having comparable skills and visor, Lesley Stephens, principal the training. 1630.2(j)(3)(i); § See C.F.R. see elementary the school to which she was as- Aucutt, 85 also F.3d at 1319. signed, about her condition. She also asked correctly We that the believe lower court Dubuque to restructure her schedule and to that there no decided was evidence before it require supervisors give specific her more a from which reasonable fact could finder Dubuque direction on how wanted her to conclude Ms. was that Olson disabled operate program the to which she was as- 12102(2)(A). § the of U.S.C. Ms. signed. Dubuque her requests, denied as- perfectly was Olson maintained that she ca- serting that management that was not their pable working elementary as an school style job it organize and that was her the counselor, guidance although she asserted
program herself. depression that often made her unable to then sought perform Throughout Olson medical attention her own standards. school, Lee, Yasyn from psychiatrist, Dr. a year, reported who the -she 1993-94 Iowa, Jarvey, sitting by parties. The Honorable John A. Chief United consent of the See 28 636(c)(1); 73(a). Magistrate Judge § Northern District U.S.C. see also Fed.R.Civ.P. her individual, conflicts with ty” small or that her occasional and held regularly work say long-term. supervisors De- We cannot guidance sessions. were group, and classroom depression a periodic episodes of this that the lower court erred spite on record sup- enough holding fact could she did not receive no reasonable finder belief that that co-workers, conflicts, that a episodic personality she felt she port from her conclude that “satisfactory job.” is no doing history depression notwithstanding, There with- was disability her disability. more, here rendered of a evidence out were result job, particular much less her unable to do finally maintains that she Ms. Olson range of she unable to do a broad meaning or 42 was disabled within the U.S.C. , jobs. 12102(2)(C) employer regard because her severe argues Ms. Olson being See 29 C.F.R. ed her as disabled. *4 experi that symptoms ot withdrawal she said, true, that It is as we have 1630.2©. by themselves to estab enced were sufficient of Dubuque generally aware Ms. Olson’s was lish that she was disabled condition, including had the fact that she Enforce the ADA. cites an EEOC She sought medical treatment. and received proposition that her for the ment Guidance necessary Dubuque is an awareness Such supervisors was the poor with her interaction disabled, not regarded have her as but it is disability. a EEOC manifestation of a There more before sufficient. must be state, in fact notice that she relies on does summary judgment. plaintiff can survive colleagues with that while occasional conflict Aucutt, F.3d 1319-20. Ms. Olson See at not to demonstrate “substantial is sufficient of the suggests that there is more because ADA, meaning of the limitation” within the perfor work in her criticism of her 1993-94 substantially limit individual would be “[a]n sim mance But that evaluation evaluation. ... relations with others were ed if his/her ways supervi ply identifies the her which by regular on 'a basis severe characterized that her work was deficient. sors believed example, high lev problems, consistently nothing support is in it would an There withdrawal, hostility, failure to social els Dubuque regarded her as dis inference necessary. limita communicate when These abled. long-term justify ... tions must be (emphasis origi finding disability” ADA III. nal). Psy EEOC Guidance: Enforcement stated, judg- For we affirm the the reasons with chiatric Disabilities' and the Americans ment of the lower court. (March 25, 1997), § 9 EEOC Disabilities Act (BNA). Compliance Manual SACHS, Judge, concurring. interpretation thé EEOC’s While opinion, particularly as it agree I with the deference, entitled to there was the ADA is year of relates to the second Ms. Olson’s no lower nevertheless evidence before the period This was the critical in which service. Dubuque court that Ms. Olson’s conflicts with re- it was that she should not be decided disability. Ms. manifestation of a were the ac- tained a school counselor. It was running sought additional assistance in Olson longer knowledged at that that she no time guidance program that it but was told suffering diagnosed depression. from a was it; duty to evi was her run uncontroverted by Moreover, urged the “accommodations” working capable dence shows she was lacking largely Dr. Lee in October 1994were Although she in other roles at the school. effect, Dubuque specificity. In asked was unsupportive she in an often felt that was might remedy stressful conditions that unfriendly at environment the school relapse” into de- create “increased risk for distant, no there is that other teachers were pression. experienced with evidence that Olson ruling by Third in a “regular at work As stated current drawal on a basis” while Circuit, depend entirely “compliance Dubuque. is that Ms. would Nor there evidence (the any given Dubuque employee’s) stress level at charac on Olson’s environment at Technologies, v. Lucent by “consistently high hostili- moment.” Gaul terized levels of Inc., (3rd Cir.1998). Such F.3d ” “amorphous is not ‘standard’ usable an accommodation mandated
establish
law. OETKEN, Appellant,
Todd Allen
v. AULT; Larry Theilen, C/O; J.
John Wil Sperfslage, Sgt., Sperfs
liam sued as Lt.
lage Floor); Cheyenne (Supervisor 3rd
Lerch; Walker, E. sued as Robert Rob *5 (Additional Walker Officers-IMR- ert Drawbaugh,
Anamosa); P. John (Additional
C/O, sued John Duehr
Officers-IMR-Anamosa), Appellees.
No. 97-1408. Appeals,
United Court of
Eighth Circuit.
Submitted Jan. 1998. March 1998.
Decided Rehearing
Rehearing Suggestion April
En Banc Denied 1998.
Jeffrey Clive, IA, Lipman, for Appel- M. lant. ' Ensign, Asst.Atty.Gen., Kristin W. Des Moines, IA, Appellees. n ARNOLD,
Before RICHARD S. Chief WOLLMAN, Judge, BRIGHT and Circuit Judges. ARNOLD, Judge.
RICHARD S. Chief case, Oetken, In this Todd Allen cellmate, prison inmate his beaten claims prison deliberately were officials indif to an ferent excessive risk of harm to him posed by his cellmate. The District Court1 trial. found for the defendants after a The Jarvey, Magis- Judge Hon. John A. United States trate for the Northern District Iowa.